Citation Nr: 21032316 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-21 265 DATE: May 26, 2021 ORDER An initial rating in excess of 10 percent for left knee strain is denied. FINDING OF FACT For the entire appeal period, the Veteran's left knee strain is manifested by painful motion with flexion limited to, at most, 70 degrees, and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2003 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2017, February 2019, and November 2020, the Board remanded the matter for additional development and it now returns for further appellate review. The Board notes that, since the issuance of the most recent supplemental statement of the case in February 2021, additional evidence, to include a VA audiological examination, have been associated with the file and the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence. However, as such newly received evidence is irrelevant to the issue on appeal, there is no prejudice to the Veteran in the Board proceeding with a decision on the instant matter at the present time. Entitlement to an initial rating in excess of 10 percent for left knee strain. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board begins on May 27, 2011, the date service connection was awarded for left knee strain. Such disability has been rated as 10 percent disabling for the entire appeal period pursuant to DC 5260, which pertains to limitation of flexion, based on painful limitation of motion. 38 C.F.R. § 4.71a. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. However, DC 5260 was not changed. In this regard, normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. DC 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where extension is limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA's General Counsel has stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). Based upon a review of the record, the Board finds that an initial rating in excess of 10 percent for the Veteran's left knee disability is not warranted. In this regard, during his February 2012 VA examination, he reported that he experienced intermittent swelling of his left knee over the past 2 to 3 years. He also had discomfort in the knee going up and down stairs as well as with crouching, stooping, or squatting activities. He further experienced pain when he held his knee in full flexion for extended periods of time, but had no difficulty when driving permitting repositioning and movement of the knee. The Veteran also reported flare-ups when walking up and down stairs, his work activities, or simply sitting with his knee in full flexion for extended periods of time. Active range of motion testing showed left knee flexion to 155 degrees with no objective evidence of pain and extension to zero degrees. After repetitive-use testing with 3 repetitions, his left knee flexion remained at 155 degrees with extension to zero degrees. His muscle strength and joint stability tests were normal. The examiner also noted that there was no ankylosis, and no evidence or history of recurrent subluxation, lateral instability, recurrent patellar subluxation or dislocation, impairment of the tibia and/or fibula, meniscal conditions, or surgery. Left knee X-rays also revealed there was no acute fracture or dislocation, and no joint effusion was present. In his July 2013 substantive appeal, the Veteran stated that his left knee continued to swell and radiated pain that was unbearable. During his December 2016 Board hearing, the Veteran testified that he was wearing a knee brace and felt instability when he squatted or put all of his weight on his left side. Pursuant to the December 2017 remand, the Veteran underwent another VA examination in March 2018. At such time, he complained of intermittent, sharp, stabbing left anterior and deep knee pain that was worse with squatting, stair climbing, and when attempting any high impact activities. He denied mechanical symptoms, instability, loss of distal motor or sensory function. He reported he had flare-ups described as sharp and stabbing knee pains, and functional impairment when he squatted during work for more than a few seconds as such caused severe knee pain. The Veteran had normal range of motion with left knee flexion to 140 degrees and extension to 0 degrees. In this regard, the examiner noted that he had full range of motion on both active and passive range of motion testing, but experienced pain with both flexion and extension. There was also evidence of pain on weight bearing, and objective evidence of localized tenderness or pain on palpation over the tibial tubercle, patellar tendon, and inferior pole of the patella. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional functional loss or range of motion. However, the examiner noted that the Veteran was not being examined immediately after repetitive use over time or during a flare-up, and the examination was neither medically consistent or inconsistent with his statements describing functional loss with repetitive use over time or during a flare-up, but he indicated that pain significantly limited his functional ability with flare-ups. The examiner was unable to describe the loss in terms of range of motion. In this regard, he noted that determination of limitation of range of motion and functional ability during flare-up or after repeated use of a joint in the absence of examination at that time was speculative and very inaccurate. The limitation of range of motion and functional ability will depend upon severity of flare-up, degree of use over variable duration, intake of pain medications, and tolerance of pain. Thus, he concluded he could not quantify limitation of motion in the above mentioned circumstances. Additionally, the Veteran's muscle strength and joint stability tests were normal. The examiner also noted that there was no evidence or history of recurrent subluxation, lateral instability, recurrent patellar subluxation or dislocation, impairment of the tibia and/or fibula, meniscal conditions, or surgery. There was no ankylosis and the Veteran regularly used a knee brace as an assistive device. His left knee disability also impacted his ability to perform occupational tasks and he had a mild impairment in activities such as prolonged standing, walking, and squatting. Pursuant to the February 2019 remand, the examiner provided an addendum opinion in September 2019, at which time he opined that the Veteran's range of motion after a flare-up was less than the range of motion noted during his March 2018 VA examination. Specifically, he noted the Veteran's left knee flexion would be to 135 degrees and his extension would be to 0 degrees after a flare-up. In July 2020, the examiner again opined that, during a flare-up, there was evidence to support full left knee extension with flexion decreased to 135 degrees. He also noted that there was evidence of full passive and active range of motion on weight-bearing and nonweight-bearing. Thereafter, in August 2020, the Veteran reported an increase in his left knee symptomatology, decreased as increased pain and more frequent flare-ups. Accordingly, he was afforded another VA examination in January 2021. At such time, the Veteran reported that his range of motion had diminished due to pain and he had intermittent swelling. He also wore a left knee brace daily for stabilization. The Veteran also reported he had flare-ups that occurred daily and could last up to 2 days. With regard to functional loss and/or impairment, he stated pain limited range of motion and he avoided performing activities that involved kneeling or squatting. However, he did not report that he had instability or recurrent subluxation of his left knee or frequent effusion of his left knee. Active and passive range of motion testing revealed flexion to limited to 80 degrees and full extension to zero degrees with pain on flexion. There was also evidence of pain on weight-bearing, nonweight-bearing, active motion, and passive motion. Correia, supra. His pain limited his range of motion, which resulted in functional loss of activities involving squatting and kneeling. There was evidence of localized tenderness or pain on palpation of the joint or associated with soft tissue to the patella that was moderate, but there was no objective evidence of crepitus. After repetitive use testing, left knee flexion decreased to 70 degrees, but extension remained full with pain causing functional loss. The Veteran was not examined immediately after repeated use over time, but the examiner noted pain would significantly limit functional ability with repeated use over time. The examination was conducted during a flare-up; thus, his range of motion was the same in consideration of his reported flare-ups. The Veteran's stability tests were normal. Additionally, no ankylosis was noted and there was no evidence or history of recurrent subluxation, lateral instability, recurrent effusion, recurrent patellar subluxation or dislocation, impairment of the tibia and/or fibula, meniscal conditions, or surgery. The examiner found that the Veteran would have difficulty engaging in physical work activities that involved kneeling and squatting. In February 2021, the examiner provided an addendum as he was asked to provide complete findings relating to the Veteran's right knee and estimate the range of motion after repeated use over time for each knee. In this regard, the examiner noted that all examination findings for the right knee were normal and that there was no additional loss of range of motion with repeated use over time. Thus, based upon the foregoing, the Board finds that the Veteran's left knee disability does not warrant an initial rating in excess of 10 percent under DC 5260. In this regard, the record does not show that his range of motion was limited to the extent necessary to warrant a higher rating under such DC. Specifically, the evidence demonstrates that the Veteran's left knee flexion is limited to, at most, 70 degrees, and does not result in additional functional loss more nearly approximating limitation of flexion to 30 degrees, which is necessary for the assignment of a 20 percent rating under DC 5260, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Moreover, a higher or separate rating is not warranted pursuant to DC 5261 as the evidence of record shows that the Veteran's left knee extension remained full and does not result in additional functional loss more nearly approximating limitation of extension to 5 degrees, which is required for a separate noncompensable rating under such DC, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. In light of the Veteran's reports of laxity and giving way in his left knee, as well as his reported use of an assistive device, the Board has considered whether a higher or separate rating is warranted under DC 5257, which provides ratings for recurrent subluxation, lateral instability, and patellar instability. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). In this regard, the Court has held that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). However, while the Veteran is competent to describe feelings of laxity and giving way, he is not competent as a lay person to diagnose lateral instability, recurrent subluxation, or patellar instability, or relate such feelings to a specific diagnosis, as such requires the administration and interpretation of specialized testing of the ligaments and patella, respectively. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the February 2012, March 2018, and January 2021 VA examiners, who have the training to administer and interpret ligament and patellar testing, found that there was no laxity or subluxation in the left knee. Consequently, the Board affords greater probative weight to the VA examiners' conclusions than the Veteran's generalized statements. See, e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, a higher or separate rating under DC 5257 is not warranted. Similarly, as the evidence of record does not demonstrate ankylosis, dislocated or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal, DCs 5256, 5258, 5259, 5262, and 5263 are not for application. In reaching its conclusion in the instant case, the Board acknowledges the Veteran's belief that his left knee disability is more severe than as reflected by the currently assigned disability rating. However, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his left knee disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disability. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected left knee strain; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that an initial rating in excess of 10 percent for the Veteran's left knee strain is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the instant claim, such doctrine is inapplicable and it must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.